Chen v Lin - [2015] NZCA 407

IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/2015
[2015] NZCA 407

BETWEEN	YANG CHEN Applicant
AND	JIN ZHU LIN AS ADMINISTRATOR OF ESTATE OF QIMING LIN (DECEASED) Respondent

Court:

White, French and Winkelmann JJ

Counsel:

R Reed and R M Hesketh for Applicant
A S R Kashyap for Respondent

Judgment:

(On the papers)

3 September 2015 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BCosts on the application are reserved for determination as part of the hearing of the substantive appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

By application filed on 15 June 2015 Mr Chen applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal.
He seeks to appeal a judgment of Associate Judge Doogue delivered in the High Court at Auckland on 23 July 2014.[1]
[1]Chen v Lin [2014] NZHC 1727.
By consent, we are dealing with this application on the papers.

The judgment of the New Zealand High Court and the judgments of the Chinese Courts

On Mr Chen’s application, Associate Judge Doogue entered summary judgment against the respondent for RMB 20 million. That was the amount of a judgment entered in favour of Mr Chen against the respondent on 10 March 2011 in the Fuzhou Intermediate People’s Court in China, and subsequently upheld on appeal to the Fujian Higher People’s Court on 27 October 2011 and to the Supreme Court of China on 26 April 2012.
The orders made by the Fuzhou Intermediate People’s Court at first instance included this order:
II.The Defendants Chen Shuqin, Lin Jinzhu, Ling Tingting and Lin Feiteng should refund the transfer amount RMB 20 million and corresponding interest (to be calculated according to the overdue loan interest rate of the same kind in the same period of the People’s Bank of China based on RMB 20 million from May 14, 2009 to the date of repayment confirmed by this Judgment) to the Plaintiff Chen Yang within the scope of inheritance of Ling Qiming’s heritage in 10 days since the effective date of this Judgment.
If failed to perform, the repayment obligation within the time limit specified in this Judgment, double liabilities and interest should be paid for the delay period in performance according to Article 229 of the Civil Procedure Law of People’s Republic of China.
The litigation fee for this case, i.e. RMB 141,800, should be assumed by the Defendants Chen Shuqin, Lin Jinzhu, Lin Tingting and Lin Feiteng.
As is evident from that order, the judgment of the Chinese Courts included interest on the principal sum of RMB 20 million. However, the judgment entered summarily by Associate Judge Doogue did not include interest. He ordered:[2]
(a)The courts in China had jurisdiction to make the orders that it did establishing that the respondent/defendant is indebted to the applicant/plaintiff in the sum of RMB 20 million.
(b)The applicant/plaintiff is entitled to enforce…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v Lin

Details

AGLC: Chen v Lin [2015] NZCA 407
Case: [2015] NZCA 407
Decision Date: 3 September 2015 at 11.00 am

CaseChat Overview and Summary

The case of Chen v Lin involved an application by Yang Chen for an extension of time to appeal a judgment of the High Court at Auckland delivered by Associate Judge Doogue. The judgment in question concerned a debt of RMB 20 million owed by Jin Zhu Lin, the respondent, to Mr Chen. The debt originated from a series of judgments by Chinese courts, which had been upheld by the Supreme Court of China. The High Court's judgment, however, did not include interest on the principal sum as awarded by the Chinese courts. Mr Chen subsequently made several unsuccessful applications to the High Court to amend or recall the judgment, before finally seeking an extension of time to appeal to the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the delay in making the application for an extension of time was justified and whether the delay had prejudiced the respondent. The Court considered several factors, including the length of the delay, the reasons for it, the conduct of the parties, and the extent of the prejudice caused to the respondent. The respondent argued that the delay was significant and unjustified, and that the various steps taken by Mr Chen were an abuse of process. The Court found that while Mr Chen should have appealed at the outset, the delay did not cause real prejudice to the respondent, as the debt and the Chinese judgments were not in dispute.

The Court of Appeal granted the application for an extension of time to appeal, emphasizing that the prospective merits of the appeal were overwhelmingly in favour of granting the extension. The Court highlighted that the interest on the principal sum of RMB 20 million, if calculated as awarded by the Chinese courts, would amount to a substantial sum, making the appeal meritorious. The Court reserved the costs of the application for determination as part of the substantive appeal hearing.

Orders